On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-317-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Simonelli and King.
We review the order of the trial court which requires the State to pay for the cost of respondent C.B.'s living arrangements and treatment as an out-patient on a conditional discharge from commitment under the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). The State contends on this appeal that the judge's order is without legal or factual basis. The State claims that the SVPA does not require it or any State agency to pay for the costs of residential placement and treatment for a committee who is conditionally discharged under the SVPA. The respondent's rent is currently $610 per month. He has accumulated arrears of $3600 from nonpayment which Hill's Boarding Home hopes to recoup. The judge did not discuss the arrears. The cost of out-patient treatment is fairly nominal. At oral argument, we were told about $10 per week is the present cost for therapy, certainly on a charity basis.
We entertained the State's application for a stay on an emergency basis on March 25, 2008. We denied the application for a stay on March 25 but accelerated the appeal and placed it on the oral argument calendar for May 21. We now find no legal authority for the court's order that the State fund these expenses of respondent's SVPA conditional discharge, though the order was doubtless well-intended and a very practical interim resolution of the alternative to this dilemma, immediate recommitment to custody in the Special Treatment Unit (STU).
The judge was hopeful that the administrative "problem" would be short-lived. He stated:
I [am going to] direct -- I [am going to] give the State -- the STU [within] 30 days to either place [C.B.] back in -- [C.B.] back in Hill's Boarding Home, or to some other appropriate placement. I'm going to direct that they pay for that placement, and the costs of [C.B.'s] sex offender specific treatment on a temporary basis until the appeal of the denial of his SSI benefits is decided.
At oral argument we were told by counsel that there is currently a large back-log of federal SSI appeals and no prospect for a resolution and restoration of Supplemental Security Income (SSI) benefits for respondent's living expenses in the foreseeable future.
Respondent was committed pursuant to the SVPA on May 1, 2003 and conditionally discharged on June 21, 2004. While conditionally discharged respondent initially complied with the court-ordered conditions, but over time he violated more and more of his conditions and engaged in behavior which increased his risk of reoffense. On December 13, 2007 when respondent had been engaged in a pattern of violating his curfew, skipping required treatment, and vocational programs, and was unemployed, he had exhausted or was denied various forms of financial assistance, and finally was evicted from the boarding house where required to live, the State filed a petition to recommit him. The court entered an order returning C.B. to the STU and set a hearing for December 18, 2007. At the hearing the State contended that the record amply demonstrated that respondent was no longer highly likely to comply with the conditions that lowered his risk of offense and again was likely to commit acts of sexual violence.
The judge found that respondent had committed the various violations of conditional release but found he was not highly likely to reoffend and denied the State's petition. As noted the judge also ordered the State to pay for respondent's living expenses and treatment in the community so he again could be conditionally discharged.
Respondent, a pedophile, age thirty-three, had a history in 1995 and 1996 of offending against at least three girls, ages four to fourteen. The offenses involved both attempted and completed oral and vaginal penetration, and breast and other fondling. Respondent pleaded guilty to various charges including aggravated sexual assault. He received an aggregate ten-year sentence to the Adult Diagnostic and Treatment Center (ADTC) and appropriate Megan's Law community supervision.
Respondent was temporarily committed under the SVPA on May 1, 2003 after serving prison time. He then was committed by the judge's August 26, 2003 judgment following his initial plenary commitment hearing. The judge also ordered that the next review hearing be held in six months and that if respondent was accepted into a residential program, the case should be brought back on short notice. The order was based on the finding that with proper structure and supervision, respondent would not be highly likely to commit acts of sexual violence and he could be conditionally discharged.
On June 21, 2004 the judge ordered respondent's conditional discharge. C.B.'s conditional discharge plan required him to live at Christian Recovery Outreach Ministries (CROM) in New York. The conditional discharge order required that respondent abide by parole's rules and regulations, submit to random drug and alcohol testing, attend sex offender specific treatment, attend drug and alcohol treatment, and comply with the rules and regulations of CROM.
Respondent complied with most of his conditional discharge requirements while he was living at CROM. Respondent worked at the Broadway Super Clean Laundromat, Inc., three days per week, complied with the rules at CROM, and after some initial difficulties attending his intake appointment and navigating the New York transit system, attended and participated in his sex offender treatment. While at CROM, respondent temporarily lost food stamp vouchers due to his failure to return a status report of his income and work schedule to the appropriate office. CROM essentially ceased operations in early 2005, and the STU found a new ...